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'This is the thing revolutions are made of'

Top Christian lawyer: Justices' marriage 'decision crosses the line'

The Supreme Court had no reason to rule on the merits of the Defense of Marriage Act, but the majority opinion lays the groundwork for a sweeping, national legalization of same-sex marriage in the near future, warns Liberty Counsel Chairman Mathew Staver.

On Wednesday, the Supreme Court handed same-sex marriage advocates a pair of victories. In addition to dismissing a defense of California’s traditional marriage amendment based on legal standing, it struck down a provision of the Defense of Marriage Act, or DOMA, as unconstitutional that allowed federal benefits only for spouses in heterosexual marriages. That’s because the 1996 federal law recognized marriage as only the union of one man and one woman. The Court preserved the DOMA provision that allows states to refuse recognizing homosexual marriages performed in other states.

“Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways,” wrote Justice Anthony Kennedy in the majority opinion. “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.”

Kennedy was joined on the opinion by the Court’s four liberal justices.

Staver blasts the majority for ruling on the merits at all, saying the case never should have come this far since the Obama administration refused to defend DOMA. The government, the plaintiff and the lower courts all agreed on the earlier verdict, so Staver said this matter never should have reached the Supreme Court.

“The parties all agree that the ruling below is correct. Therefore, it should never have gone to the court of appeals, and certainly the U.S. Supreme Court has no jurisdiction. This is just an advisory opinion,” Staver said. “This is unprecedented that the Court took this step to actually even decide the merits of the case.

“And then when it decided the merits of the case, it used words such as ‘bigotry,’ ‘hostility’ and ‘demeaning,’ referring to the Equal Protection Clause but it never did an equal protection analysis,” he said. “Every Equal Protection Clause analysis has to at least determine several things. One, is the so-called right that you’re after one that is rooted in history and part of our idea of ordered liberty? Here they’re asking for the right to same-sex marriage. Has that been rooted in our history? Is it part of ordered liberty? The answer to that is obviously no. The reason they didn’t address that question is because they would have to have come to an opposite conclusion. They skipped it. It’s unbelievable.

“This is just five people that have written a piece of opinion and issued it under the guise of the U.S. Supreme Court, but it has no grounding in the constitutional text or in the history of its previous precedent,” Staver said.

Some defenders of traditional marriage say today’s decisions weren’t a total loss because the Court refrained from issuing a nationwide pronouncement in favor of homosexual marriage. Staver is not among them. He sees the DOMA ruling as the precursor to such a ruling in a future case.

“In the short term, it’s not the blanket same-sex marriage across the country. That’s something that we actually could have had from this case today. On the other hand, this is the 1972 contraception for individual cases that ultimately laid the foundation for the 1973 Roe v. Wade case.

“This is the groundwork for same-sex marriage that the court laid today. There’s no question about it,” said Staver. “The way that they wrote this decision, while it doesn’t put same-sex marriage across the country, they are telegraphing that’s what they want to do. And they will open up the floodgates of litigation, and they are begging for another case to come to the high court.

“This decision crosses the line, and the people have to respond or they’re going to be under a ruling oligarchy of five individuals that have untethered themselves. They’ve cut the line between themselves and the Constitution,” Staver said.

Staver was a strong supporter of Proposition 8 in California, but believes the unusual collaboration of justices in the majority was correct in dismissing the appeal based on standing since California officials refused to defend their own law.